Judgment:
S.B. Sinha, J.
1. This application is directed against an order dated 24-6-1986 passed by respondent No. 5 as contained in Annexure-5 to the writ' application whereby the said' authority in purported' exercise of his owner conferred under Section 6 of the Bihar Public Land Encroachment Act directed to remove the encroachment.
2. The basic facts of the matter are not in dispute. The petitioners are Harijans and/or belong to backward classes. They are also said to be landless persons. The petitioners and six other persons filed in all 30 applications on 8-5-1982 before the Land Reforms Deputy Collector for settlement of the plots contained in khasra No. 36 khata No. 234 measuring 38.kathas 10 dhura situate in Companybagh within the Bhagalpur Municipality. The lands have been recorded as 'Anabad Bihar Sarkar'. Upon receipt of the said applications, an enquiry was made by the Land Reforms Deputy Collector (respondent No. 4) and accordingly Parwanas were issued in favour of the petitioners on 29-1982. The said Parwanas are Annexures-2 to 22' to the writ' applications. The petitioners have contended that thereafter they also paid rent' to the State of, Bihar which have been accepted from, them. The rent) receipts granted to the petitioners are contained in Annexures-3 to 3/22 to the writ, application.
3. In Paragraph 11 of the writ application, the petitioners have given the details of the plots settled in their favour. The petitioners however, were given notice under Section 3 of the said Act directing them to show cause as to why they should not be directed to remove the encroachment. The respondent No. 5 after hearing the parties inter alia, held that the petitioners are directed to remove the encroachment
4. In this case, a counter-affidavit has been filed on behalf of the State. In the said counter-affidavit it has been contended that the settlements granted in favour of the petitioner have been cancelled by the Collector by an order dated 31-12-1983; According to the respondents, the land Encroachment proceeding was initiated as against the petitioners in view of the aforementioned order.
5. A reply to the counter-affidavit rejoinder affidavit as been filed on behalf of the petitioners wherein it has been contended that the petitioners applied for grant of certified copy of the said order dated 31-12-1983 but the same had not been supplied. The petitioners have contended that in fact, the said order had been passed on 31-12-1983 without giving any opportunity of hearing to the petitioners.
6. Learned Counsel appearing for the petitioners has raised a short question in support of this application. Learned Counsel submitted that the word the encroachment has been defined under Section 2(I-A) of the said Act as meaning unauthorised occupation of any public land and therefore, the land encroachment proceeding as against the petitioner was not maintainable,
7. Mr. Jha, learned Counsel appearing for respondent No. 5 on the other hand submitted that in view of the fact that the settlement granted in favour of the petitioners has been cancelled by a higher authority, the occupation of the petitioners became illegal and thus, the proceeding under the Bihar Public Land Encroachment Act was maintainable. There cannot be any doubt that the petitioners were found to be in possession of the hands. It is also not in dispute that the State of Bihar had accepted rent from the petitioners.
8. If the petitioners had been put in possession of the lands in question by the officer of the State of Bihar, it was for the respondents to satisfy the authorities under the Bihar Public Land Encroachment Act as also this Court that their settlements have validly been cancelled. This application was admitted to hearing after filing of the counter-affidavit for determination of the question as to whether the settlements granted in favour of the petitioners could have been cancelled without giving them an opportunity of being heard. Learned Gverment pleader No. 1 does not dispute the proposition of law that if any settlement is made in favour of a citizen on the, ground, inter alia, that he is a landless persons pursuant to any scheme of the State of Bihar ; such settlement may be cancelled only in accordance with law which inter alia would include compliance of principles of natural justice.
9. Despite the fact that this writ application was admitted, no supplementary counter-affidavit had been filed nor the order dated 31-12-1983 had been produced before this Court. The submission made by the petitioners to the effect that the certified copy of the order dated 31-12-198J had not been delivered thus stands uncontroverted.
10. It is now well know that even an administrative order which entails civil or evil consequences, can be passed only upon compliance of the principles of natural justice and an order which has been found to have been passed without compliance of the principles of natural justice, being an illegal order, cannot be sustained The said encroachment proceeding, therefore, could not have be initiated under the provisions of Bihar Public Land Encroachment Act.
11. For the reasons aforementioned, this application is allowed and the order as contained in Annexure-5 to the writ application is set aside.
12. However, it goes without saying that it will be open to the State to initiate a proceeding for removal of the encroachment as it' the State thinks it fit upon conclusions of the proceedings for cancellation of settlement, in which event, the petitioners would be entitled to be given an opportunity of being heard. In the facts and circumstances of the case, there shall be no orders as to costs.